The concept of a “primary health need” is key to deciding whether a person is eligible for NHS Continuing Healthcare. NHS Continuing Healthcare is personal health and social care funded by NHS Clinical Commissioning Groups (CCGs). This can be in a residential or nursing facility or at home. Where an individual has a “primary health need” the NHS is responsible for providing for all of that individual’s assessed needs.
What is the legal definition of a “primary health need”?
The term “primary health need” does not appear in primary legislation. This causes many problems in eligibility assessments for NHS Continuing Healthcare. After all, most adults who require a package of health and social care support do so for a health-related reason . This could be because they have had an accident or have an illness or disability. However, they do not all qualify for NHS Continuing Healthcare. It is the level and type of care needs that determine whether they have a primary health need.
The Court of Appeal ruled on the line between a primary health need and other care needs in 1999. This landmark case has come to be known as “Coughlan”. The key question was whether the local authority could lawfully provide nursing care for chronically ill patients. If it could, patients might have to pay for it depending on their means. If not, it must be provided free of charge by the NHS.
What did the Coughlan case establish?
The Court of Appeal decided the local authority could lawfully provide some nursing care. But it said the scale and type of nursing required in an individual case may mean that it would not be appropriate to regard some or all of it as something the local authority can provide. But there was “no precise line” between nursing services which are and are not capable of being treated as included in a local authority package of care services.
However, as a very general indication, the court said, “If the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide…and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided [by the local authority].”
How does the NHS assess whether someone has a “primary health need”?
Since 2007 there has been a National Framework on NHS Continuing Healthcare. It is meant to guide CCGs in assessing whether someone has a “primary health need”.
The National Framework says that a “primary health need” is “not about the reason why someone requires care or support”. Nor is it dependent on a diagnosis. It is rather about the person’s “overall actual day-to-day care needs taken in their totality”.
The National Framework sets out certain characteristics of care needs – their nature, intensity, complexity and unpredictability. Some or all of these are likely to have implications for the quantity and quality of care a person needs. They may alone or in combination point to the need for care over and above what a local authority can expect to provide. In other words, they may point to a “primary health need”.
The National Framework provides a list of questions to aid the decision-making process. But it explicitly says that this list of questions is not exhaustive. CCGs should consider each case on its own merits when deciding whether someone has a “primary health need”.
The nature of the needs
The CCG should look at all the individual’s physical, mental health or psychological needs. Next it should describe the overall effect of those needs on the individual. Finally, it should look at both the quality and quantity of interventions required to manage them.
- How does the individual or the practitioner describe the person’s needs – adjectives used, etc?
- What is the impact of the needs on overall health and well-being?
- What types of interventions does the person require to meet the needs?
- Could anyone anticipate and address their needs? Or is particular knowledge/skill/training required?
- Is the person’s condition deteriorating/improving?
- What would happen if needs were not met in a timely way?
Intensity and severity of needs
This relates both to the extent (‘quantity’) and severity (‘degree’) of the needs. It also relates to the support required to meet them.
- How severe is this need?
- How often does the person require an intervention?
- For how long do they require each intervention?
- How many carers do they require for these interventions?
- Do the needs relate to one or more “domains” – Behaviour, Cognition, Psychological and Emotional Needs, Communication, Mobility, Nutrition, Continence, Skin (including tissue viability), Breathing, Drug Therapies and Medication for Symptom Control, Altered States of Consciousness, and Other Significant Care Needs.
Complexity of the needs
This is concerned with how the needs present and interact with each other. Basically the more complex this picture, the greater the skill to manage care successfully. Complex needs may arise from a single condition, multiple conditions or the interaction of conditions. An individual’s response to their own condition may also have an impact on their overall needs, for example where a physical health need results in the individual developing a mental health need.
- How difficult is it to manage the care need(s) and to alleviate the needs and symptoms?
- Are the care needs interrelated?
- Do they impact on each other to make the needs even more difficult to address?
- How much specific knowledge and/or skill do carers need to address the need(s)?
- Do the individual’s responses make it more difficult to provide appropriate support?
Unpredictability of the needs
Often care needs fluctuate – usually because of an unstable or deteriorating condition. This can create challenges in successfully managing them. And it can also create risks if an unanticipated need is not met in an adequate and timely way.
- Is the individual or those who support him/her able to anticipate when need(s) might arise?
- Does the level of need often change? Does this mean the level of support they need changes at short notice?
- Is the condition unstable?
- What happens if needs aren’t addressed when they arise? How significant are the consequences?
- To what extent do carers require specific knowledge and/or skill to respond spontaneously and appropriately?
- What level of monitoring/review does the person need?
How should CCGs apply the “primary health need” test?
The National Framework says CCGs should take a “practical approach” to applying the “primary health need” test. To help improve consistency in how local CCGs apply it, the Government developed a national Decision Support Tool (DST). This helps trained practitioners assess the nature, complexity, intensity and unpredictability of overall care needs. However, they should not base a decision on whether someone has a “primary health need” on the DST alone. The thresholds are “indicative” not “prescriptive”. Practitioners must use their skills, knowledge and professional judgement to decide on the totality of care needs and whether these constitute a “primary health need”.
For example, an individual may have needs that do not easily fit into the care domains in the DST. In such circumstances, it is the responsibility of the assessors to determine the extent and type of the need, to record it, and to take it into account when deciding whether they have a primary health need.
Please note: this factsheet is designed to give general information only. If you require specific advice about NHS Continuing Healthcare or other care fee problems, please contact us and we will be happy to help.